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Decedent's Estate

Decedent's Estate Matters

Probate is the court supervised process of identifying and gathering a person's assets after their death, paying all of their debts, and distributing the balance of their estate to the rightful heirs or beneficiaries. If an estate exceeds $166,250.00, and if the assets are in the name of the deceased person, only, a formal probate will generally be required.

The amount of time it takes to administer a probate estate, and the cost of doing so will vary in each case. In a simple estate (House, car, bank account) where property does not need to be sold, a probate proceeding can be completed in six months or less. If an estate is more complicated, or if the heirs or beneficiaries cannot work together, administration could take much longer. Fees paid to the attorney and the executor or administrator vary according to the value of each estate, and the amount of extra work each must do to close the estate.

There are many situations where an estate does not require formal probate, including estates under $166,250.00, estates in trust, and those cases where all of the estate passes to a surviving spouse. Even when a formal probate is not required, some sort of legal process is often necessary. This is especially true when an estate includes an interest in real property. Legal counsel is recommended if you have any questions regarding estate matters.

For more information about managing a decedent's matter without legal representation, please click here.

Probate Proceedings

A probate proceeding is used to transfer a decedent's assets after death to heirs or beneficiaries. A Decedent is a person who has died with or without a Will. A Will is a document that tells how the decedent wants his or her property (estate) distributed after death. A Decedent's Estate is all the real and/or personal property owned by the decedent on the date of death. Real Property is property including buildings and land. Personal Property is temporary or moveable, such as jewelry, clothing, keepsakes, or automobiles.

Heirs And Beneficiaries

Intestate means to die without leaving a Will. Intestate Succession determines the order of those who inherit property of the decedent who died without leaving a Will. Intestacy law is governed by the Probate Code. An Heir is a person who inherits when there is no Will. Testate means to die leaving a Will. A Beneficiary is a person who inherits under the terms of a Will.

Estates Over $166,250.00

If the estate is worth over $165,250, a formal probate proceeding must be opened by filing one of the following:

  • A Petition for Letters Testamentary
  • A Petition for Letters of Administration with Will Annexed
  • A Petition for Letters of Administration

Estates Smaller Than $166,250.00

There are several ways to transfer property at death, some of which do not require formal probate:

  • If the fair market value of the estate does not exceed $55,425, heirs may transfer real property by an affidavit procedure.
  • If the value of the decedent's estate does not exceed $166,250.00 and does not contain any real property an affidavit procedure for personal property only may be used. The affidavit or declaration is presented to the holder of the asset (bank, stock brokerage company, etc.) with a request to collect or transfer the asset. The court has no involvement in this process.
  • If the value of decedent's estate is less than $166,250 but does contain real property, a Petition to Determine Succession to Real Property may be used.

For more information regarding estates smaller than $165,250 and the use of Probate Referees, please click here.

Spousal Property Petition

A surviving spouse may use a Spousal Property Petition instead of a formal probate proceeding to:

  • Confirm community property assets.
  • Determine community or separate property passing to the surviving spouse.

Custodian Of the Will

In formal probate proceedings, the custodian of a decedent's original Will must be deposited in the county in which they resided with the Probate Clerks Office within 30 days after the decedent's death. A Custodian of the Will is the person who has possession of the Will at the time of the decedent's death. A copy of the Will should be sent to the person named in the Will as Executor. An Executor is a person nominated in a Will and appointed by the court to carry out the wishes of a decedent, as set forth in the decedent's Will. A custodian who fails to comply with this requirement is liable for all damages caused by failing to present the Will.

If There Is No Will

If there is no Will and a formal probate is necessary, an Administrator is appointed as the estate representative according to a certain order of priority.

ESTATE FORMS - Hardcopy forms may be purchased at the Probate Clerk's Office in the B.F. Sisk Courthouse located at 1130 "O" Street, 3rd Floor, Room 300 for a fee or online at no cost. Click here to access estate forms at no cost.

Fees for Forms:

  • Petition for Probate (Letters of Administration, Letters Testamentary, etc.): $1.10
  • Petition to Determine Succession to Real Property: $0.70
  • Spousal or Domestic Partner Property Petition: $0.50
  • Affidavit Re: Real Property of Small Value: $0.40
  • Declaration of Transfer of Personal Property without Probate (Probate Code 13100): $1.00

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